Since last year we have tracked the development of Article 13 of the proposed Directive on Copyright in the Digital Single Market by publishing a series of flowcharts that illustrates its internal logic (or absence thereof). Now that there is a final compromise version of the directive we have taken another look at the inner workings of the article. The final version of Article 13 continues to be so problematic that as long as it remains part of the overall package, the directive as a whole will do more harm than good. This is recognised by an increasing number of MEPs who are pledging that they will vote against Article 13 at the final plenary vote.
The flowchart below illustrates the main operative elements of Article 13. These include the definition of the affected services, the types of services that are explicitly excluded from its scope (the green box in the top right corner) and the reversal of the liability rules for the services covered by Article 13. It further details the obligations imposed on the services. These include an obligation to seek licenses for all copyrighted works uploaded by users (the yellow box) and the requirements to ensure the unavailability of certain works that will force platforms to implement upload filters (the two red boxes). The yellow box at the bottom contains the measures that platforms must take to ensure that the upload filters don’t negatively affect users’ rights.
The Scope: Broad yet vague
The problems with Article 13 start with the definition of the services it applies to. While Article 13 is intended to address concerns about value distribution raised by a limited set of industries (primarily the music industry) it applies to all types of copyright protected works. But there is no good reason why an article that is intended to bolster that bargaining power of the music industry should impose expensive obligations on platforms that have nothing to do with hosting musical works. In addition, the limitation to platforms that deal with “large amounts” of works is so vague that it does not provide any legal certainty for smaller platforms and will undoubtedly give raise to court challenges. On the positive side the definition clearly limits the scope to for-profit services. Continue reading